THE TALION – EYE FOR AN EYE BY WILLIAM IAN MILLER
The image of the scales suggests it needn’t be all that hard to figure out; the instrument will provide an answer. It is merely a mechanical operation. But what are we to weigh against what?
Note:LA GIUSTIZIA È UNA BILANCIA
*** ANDARE A PARI***
Consider our own use of what it means to get even: if you get even by bringing the pan on the left hack up to its neutral position, by one account you are back to where you started, hack to zero;
Note:ANDARE A ZERO
if the debt is of honor, the wrongdoer enjoyed a certain amount of time indulging in the pleasures of looking down on you and of gloating at your humiliation;
Note:MISURARE L’ ONORE
Fair compensation requires this: you had me down, and now it is my turn to have you down, to witness and delight in your humiliation as you delighted in mine.
Note:IL GIUSTO COMPENSO
I should get not only my ox hack, but also the rental value of the ox for the time you had it.
Note:COMPENSARE CAPITALE E RENDITA
the notion of getting even is understood to embody a hostile intention to make the other feel your pain, to get him down, if not to obliterate him.
Note:PARIFICARE I DOLORI
It is merely squaring the account… Pieties as old, even older than Socrates’ – along the lines of two wrongs do not make a right – beg the question, for the second “wrong” of recompense is not a wrong but merely what justice demands.
Note:L’ ERRORE DI CHI DICE “DUE MALI NON FANNO UN BENE“
Edgar Allan Poe puts the idea nicely: “What can be more soothing, at once to a man’s Pride and to his Conscience, than the conviction that, in taking vengeance on his enemies for injustice done him, he has simply to do them justice in return?”‘
Note:LA VENDETTA RILASSA
And if the incident is but one round in a continuing hostile relationship, what then?
Note:IL PROBLEMA DELLA CATENA DI VENDETTE
Antitalionic arguments were available and regularly made. One did not have to wait for Christianity to appear on the scene to make them… all kinds of reasons why forgiveness and forgetfulness were good ideas.
Note:ARGOMENTI CONTRO IL TALIONE. PERDONO E MISERICORDIA
Thucydides records an instance, and the sagas are full of them.; They were also readily made by third parties pressing the interests of the wider community in peace.
Note:TEUCIDIDE E LE SAGHE
That said, it was still the case that in talionic cultures the demands of payback were the default position, the initial presumption, and the matter to be addressed.
Note:MA LA NOSTRA RESTA UNA CULTURA DEL TALIONE NON DELLA MISERICORDIA
The worry about how hard it is to come up with equivalences is at the core of primitive systems of justice, and it is hardly something we have adequately resolved today.
dispute endlessly which measure of damages will best capture the real damage so as to make the victim “whole.” Though we do not officially make criminal punition compensatory, we have not rid ourselves of the idea that it too is a payment, a discharge of something owed by the criminal,
Note:UN PROBLEMA ATTUALE. CONCEZIONE RETRIBUTIVA DELLA PENA
We thus worry about proportionality within a grid of punishments, which mostly comes down to assigning various numbers of years to different offenses depending on their badness, years thus providing the means and measure of payment, rather than eyes, teeth, lives, or money.4
LA PROPORZIONALITÀ AL CENTRO
Consider the law of the talion, the law of retaliation, of tit for tat, whose classic formulation is the biblical eye for an eye, tooth for a tooth.
Note:IL TALIONE. VIENE DA LÌ IL NOSTRO SENSO DI GIUSTIZIA
We take the talion as a classic statement of irrational revenge, as an emblem of a society so blind to good sense as to prefer two one-eyed people to one.’
Note:EPPURE OGGI IL TALIONE È DISPREZZATO
The embarrassment of some people drives them to attempt to rescueGod’s word from charges of cruelty and vulgarity by arguing that in its historical and cultural setting the talion was a limitation on revenge and bloodfeud… it also sets a bottom limit – no less than one eye or one life, either. No letting your cowardice, that is, incline you to he forgiving.
Note:SCOPO DEL TALIONE: LIMITARE LA VENDETTA
Others have argued that the biblical formulation of the talion was a rejection of the vicarious liability – hitting X for the wrongs that Y did – that accompanied the earliest formulation of the talion in the Mesopotamian laws, where, for instance, if one were to injure the son of man, it was the injurer’s son who was the object of expiation.
Note:TALIONE PRELUDIO ALLA RESPONSABILITÀ PERSONALE
Leviticus and Deuteronomy are clear that this is the case, but Exodus is rather less so, for we still have God insisting in the chapter before the Exodus talion that He is “a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me” (Ex. zo.5).
Note:LEVITICO DEUTERONOMIO ESODO. CONCEZIONI DIFFERENTI DEL DEUTERONOMIO
talion can he read as a strong statement of treating people equally,
Note:TALIONE PRODROMO DELL’EGUAGLIANZA
The Israelite society reflected in the Book of the Covenant (Ex. 20-22-z3-33), however, lacked the different juridical classes of free men of Hammurahi, recognizing, like saga Iceland, only two distinctions: slave and free.
Note:SOLO DUE DISTINZIONI: SCHIAVI E LIBERI
Those who advocate the equality reading argue that the talionic legislation – an innovation in Hammurabi’s code and later adopted by the ancient Israelite codes – was an attempt to have the polity criminalize what before were private matters, and thus to make sure the wealthy could no longer buy themselves out of suffering mutilation for the harms they had inflicted.’
Note:TALIONE: LA GIUSTIZIA NON SI COMPRA. MISSIONE MPOSSIBILE
Not having sheep to pay his debts he now has his body or body parts.
Note:QUANDO SI PAGA COL CORPO ANCHE I POVERI POSSONO PAGARE
You must be wondering, but what good does your eye do me?
Note:COSA ME NE VIENE DAL SACRIFICIO DEL TUO OCCHIO?
one of the goals of tort law is to make the victim whole (recall that the root of shalom also involves the concept of restoring wholeness), but, as we will see, we do it on the cheap. Talionic cultures were invariably honor cultures,
Note:L’ONORE RIPRISTINATO. RETRIBUZIONE E ONORE VIAGGIANO INSIEME
If I can rightly take your eye, you will be scared of me. That is worth something; it makes the compensatory regime of the talion one that cannot help but keep honor firmly in its sights,
Note:E PRODUCE ANCHE DETERRENZA
Honor has an extraordinary transformative power: it can make currency of no value, a worthless dead eye, into something of great value.
Note:L’AONORE EDIFICA LA CIVILTÀ
***COMPENSARE COMPENSARE COMPENSARE***
revenge was not just an ethic but an aesthetic, the aesthetic of proportion and balance.
Note:IL LATO ESTETICO DELLA GIUSTIZIA
A man who went postal and took excessive revenge was understood to be acting not only without right but also without taste.
Note:LA VENDETTA ECCESSIVA COME MANCANZA DI GUSTO
The Norse even had a proverb to that effect: “Short is the life of the immoderate.””
The politics of disputing focused on three main issues: one, what the precise medium was to be employed to repay the obligation and in what amount; two, a corollary of the preceding, whom to hit on the other side; and three, when to pay it over.
Note:I TRE CARDINI PER GIUDICARE UNA LITE
Taking blood was no less compensatory than taking money.
Note:SANGUE E MONETA
revenge systems gave way to compensation systems, which then paved the way for state-delivered justice, amidst general rejoicing at the progress. The fact is that revenge in blood invariably coexisted with means of paying off the avenger by transfers of property
Note:VENDETTA: CARDINE DELLA COMPENSAZIONE E DELLA CIVILTÀ
The problem for early talionic culture was not the conceptual one of being too primitive to understand notions of exchange, but the practical one of how to measure value
Note:IL PROBLEMA NN È IL TALIONE MA LA MISURAZIONE DEI VALORI
Remember that the classic formulation of the talion arose before coinage was general, before there was easy and ready money that was of a given weight and purity and whose value was clear…And even after coinage came into existence – first appearing in Lydia in the sixth century B.C. – it was often in short supply.
Note::IL TALIONE PRECEDE IL CONIO
There was a presumption that blood was the noblest form of specie, or at least the most poetic.
Note:POESIA DEL SANGUE
***ARMONIA DELLA VENDETTA***
why did the ancient Hebrew legislator not prescribe, as the seventh-to eleventh-century Germanic codes would do, an eye for 50 shillings, a tooth for 6, a middle finger for 4,
Note:MONETIZZARE LA CARNE. INVENZIONE GERMANICA
Was it that the biblical lawgiver liked the cadence and elegance of such a tough-minded statement of pure equivalence, of an eye for an eye, a tooth for a tooth?”
Note:LA MONETA INQUINA L’ELEGANZA DELLE PROPORZIONI. L’ELEGANZA POETICA DELLA LEGGE
The biblical formulations are not limited to eyes and teeth. It is as if the legislator and compiler got too excited to stop, especially in Exodus: “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.”
Daube has argued that Jesus knew that the talion as stated was not literally applied in his time.
Note:TALIONE DA SEMPRE DISAPPLICATO NELLA SUA LETTERA
Two centuries earlier the rabbis had already interpreted the talion to mean that money compensation was what the rule required.
Note:MONETIZZAZIONE GIÀ IN ATTO DA SUBITO
In Daube’s view, Jesus is thus using the talionic formulation more generally to argue against merely suing for money damages for the insult of having one’s face slapped. He is urging that one endure the shame with stoic passivity. Turn the other cheek; do not seek to collect damages in a lawsuit. He was rejecting the root idea of seeking any kind of compensation, whether blood or money, for injuries of humiliation and dishonor in this world.”
Note:GESÙ CONTRO LA COMPENSAZIONE
if Daube is right, it means that Jesus used the abridged talionic formulation solely because of the terrible beauty with which it states the principle of compensation, of getting even. Jesus was thus drawn to the graphic statement of the talion in the same way we are, because it has a compelling ring to it, because it perfectly states a general principle of just recompense that he is arguing should be rejected even in the softened form to which the rabbis had reduced it.
LA TERRIBILE ELEGANZA CHE ATTERRÌ GESÙ